Informe en el que el Comité pide que se le mantenga informado de la evolución de la situación - Informe núm. 353, Marzo 2009

1. 917. The complaint is contained in a communication dated 26 October 2007 from the National Federation of Judicial Associations of Ecuador (FENAJE). The FENAJE sent further information in communications dated 9 and 11 February 2008. Public Services International (PSI) supported the complaint in a communication dated 15 November 2007.
2. 918. The Government sent its observations in communications dated 5 March and 26 November 2008 and confirmed the observations made by the Supreme Court of Justice in a communication of 27 February 2008.
3. 919. Ecuador has ratified the Freedom of Association and Protection of the Right to Organise Convention, 1948 (No. 87), and the Right to Organise and Collective Bargaining Convention, 1949 (No. 98).

A. The complainant's allegations

1. 920. In its communication dated 26 October 2007, the FENAJE presents a complaint against the Government of Ecuador to the effect that federation leaders and four members suffered anti-union harassment and reprisals for defending the dignity and rights relating to the career and tenure of judicial officers of the country. The FENAJE also alleges that detention orders were issued against the leaders with the aim of closing down the union of judicial workers.
2. 921. The FENAJE states that by a decision of 17 May 2006 the Supreme Court of Justice ruled that the judiciary was to be reorganized. That decision was at odds with the guarantees relating to the judicial career system and tenure in office enshrined in the State Charter and caused the affected sectors to take related actions, using reason and law to prevent a legal irregularity of this sort from being implemented.
3. 922. The complainant organization indicates that article 204 of the Political Constitution in force in the country states that the judicial career system is recognized and guaranteed and its regulation shall be determined by law. With the exception of the judges of the Supreme Court of Justice, the magistrates, judges, officials and employees of the judiciary shall be appointed through competition based on merit and testing, as applicable, in accordance with the provisions of the law.
4. 923. The FENAJE points out that there is no question that the failure to respect the regulation of the judicial career system, apart from creating liability on the part of those responsible, violates the right to work and the rules of procedure, as well as the right of access to the judicial career system. Furthermore, the right to enjoy the benefits of that career system is suspended as a result of the deficient and negligent conduct of the respondent.
5. 924. The FENAJE affirms that sections 129, 133 and 173 of the Organic Law on the Judiciary and section 223 of the Tax Code provide that, in each specific case, the posts held by the officers of the High Courts of Justice and the Court of Administrative Disputes, by judges in civil, criminal, labour, tenancy and traffic courts, and by property registrars, notaries and officers of the Court of Fiscal Disputes shall be for a fixed term. The FENAJE states that, by means of Act No. 82-PCL published in Official Journal No. 486 of 25 July 1990, section 158 of the Organic Law on the Judiciary was replaced by the following paragraph: “The judicial career system is hereby established, as are consequently the right to tenure and advancement of the members of the judiciary, provided that they perform their duties with integrity, ability and efficiency.”
6. 925. According to the FENAJE, on the basis of the cited regulations, officials in the judiciary have had career and tenure rights since 1990. Overall, this was enshrined in the philosophical concept of judicial independence, which is underpinned by career and tenure rights. The Political Constitution of the State – in force since 11 August 1998 – enshrines and expressly guarantees those career and tenure rights, in full conformity with section 158 of the Organic Law on the Judiciary. In addition, articles 272, 273, 274 and 18 of the Constitution guarantee: the supremacy of the Constitution; the obligatory application of the Constitution; the inapplicability of the ordinary law; and constitutional rights and guarantees. Hence the career and tenure rights of members of the judiciary are unquestionable in constitutional and legal terms.
7. 926. With regard to the bodies having competence for the dismissal of members of the judiciary, the FENAJE states that it should be recalled that, when previously established judicial officials had fixed-term posts, the power to dismiss them was the prerogative of the Supreme Court of Justice, in accordance with section 13(1) of the Organic Law on the Judiciary. With the setting up of the National Judiciary Council, that power which previously belonged to the Supreme Court was transferred to this new entity. Due to its special nature, which is specifically linked to the administrative and disciplinary supervision of the judiciary, this power was expressly assigned by constitutional mandate in section 206 of the Constitution in conjunction with section 17(f) of the Organic Law on the Judiciary. It should be noted that there is currently no legislative provision in Ecuador which endows the Supreme Court with the power to dismiss officers of the high courts and other members of the judiciary or otherwise relieve them of their duties.
8. 927. According to the FENAJE, the act of dismissal which it contests is invalid in law because it violates the constitutional standards referred to above and anything that violates the law, as stipulated principally by sections 9 and 10 of the Civil Code, is null and void. In relation to the above, the FENAJE took legal action to curb the arbitrary actions of the Supreme Court of Justice and the National Judiciary Council, filing a number of applications for amparo (protection of constitutional rights) against various administrative acts which violated constitutional standards, as well as calling for the resolution in question to be declared unconstitutional. However, the response from the bodies responsible for respecting the State Charter – namely, the Supreme Court and the National Judiciary Council – has been to harass and penalize the union members who have displayed courage and integrity while acting within the framework of the law.
9. 928. The National Judiciary Council, although previously containing two members illegally appointed by the Supreme Court of Justice without prior competition and despite the existence of an action for amparo in which the first-instance judge suspended the appointments made by the Council, reviewed a penalty imposed on lawyer and union member Mr Luis Hernán Muñoz Pasquel for making statements in the media which the Supreme Court considered defamatory. Hence he was suspended from his duties for 30 days and then dismissed from his post as a judicial official (it should be noted that he enjoyed immunity as a result of participating in the national elections and while their outcome was still pending). The complainant points out that two judges who allowed appeals lodged by the FENAJE were penalized.
10. 929. Against this background and after the Constitutional Court had upheld the dismissal of two officers of the National Judiciary Council, the Supreme Court of Justice declared its position and on 11 February 2007 presented a statement to the country rejecting the constitutional decision. Thereupon, on 13 February 2007, with the judicial workers and employees in distress and despair, the National Judiciary Council building was occupied by employees from the judicial sector. The Supreme Court, in its session of 14 February 2007, despite having no legal competence to do so and violating the most basic principles of due process, dismissed a number of FENAJE leaders, on the basis of the following arguments: “The Supreme Court of Justice, considering that: the second clause of article 35(10) of the Political Constitution of the Republic of Ecuador prohibits any immobilization of public services, especially in the areas of health, education, justice and social security; that section 13(1) of the Organic Law on the Judiciary determines, among the tasks and duties of the Supreme Court, the appointment or dismissal of officers of the high courts and also the dismissal of judges, officials and employees of the judiciary for blatant misconduct in the performance of their duties; that section 17 of the Organic Law on the Judiciary determines that the Supreme Court has the essential duty of supervising the administration of justice in the Republic; that it is public knowledge that on 13 February 2007 the National Judiciary Council building was taken over by a group of persons led by Mr Luis Hernán Muñoz Pasquel, Mr Girard David Vernaza Arroyo, Ms Josefa Clementina Mendoza Zambrano, Mr Jaime Fabián Pérez Sánchez, Ms Alba Rosa Quinteros Campaña and others whose identity is under investigation and whose actions constitute flagrant offences, also entailing serious and blatant misconduct in the performance of their duties; that by a circular of the same date Mr Girard David Vernaza Arroyo and Mr Milton Pazmiño Soria, in their respective capacities as president of the FENAJE and president of the Association of Judicial Officers of Santo Domingo, call on all judicial employees and officials to engage in a national work stoppage, entailing a repeated violation of the constitutional mandate.” The Supreme Court goes on to: “dismiss from the posts which they occupied in the judicial branch, Luis Hernán Muñoz Pasquel, Girard David Vernaza Arroyo, Josefa Clementina Mendoza Zambrano, Jaime Fabián Pérez Sánchez, Alba Rosa Quinteros Campaña and Milton Pazmiño Soria for blatant and serious misconduct in the performance of their duties and for violation of the constitutional prohibition referred to above without prejudice to the relevant civil and criminal legal proceedings”.
11. 930. The FENAJE alleges that the harassment and dismissal of the FENAJE leaders and members in question, the ban on meetings, union activities and leave of absence for union meetings constitute an attack on freedom of association. The union claims that leaders Luis Hernán Muñoz Pasquel, Girard David Vernaza Arroyo, Josefa Clementina Mendoza Zambrano, Jaime Fabián Pérez Sánchez, Alba Rosa Quinteros Campaña and Milton Pazmiño Soria, have suffered personal and professional damage because of being dismissed illegally and unconstitutionally from the institution, left without work and without the possibility of continuing their careers in the judiciary, and had their right of defence restricted. These decisions were aimed at closing down the trade union.
12. 931. The FENAJE indicates that, in order to silence its defence of the union, criminal court proceedings were launched on 25 October 2007 and the Third Criminal Chamber of the High Court of Quito issued a detention order against FENAJE leader Girard David Vernaza Arroyo and former FENAJE president Luis Hernán Muñoz Pasquel, with the aim of restricting freedom of association.
13. 932. In its communications of 9 and 11 February 2006, the FENAJE sent press cuttings referring to statements made by judges of the Supreme Court of Justice, who were candidates for the presidency thereof, against FENAJE leaders Luis Hernán Muñoz Pasquel and Girard David Vernaza Arroyo, to the detention orders against both of them, to the FENAJE and a number of leaders in relation to alleged phone-tapping in the National Judiciary Council, to the occupation of the National Judiciary Council building and to the dismissals of Mr Muñoz and Mr Vernaza Arroyo by the Supreme Court, to cartoons which illustrate the penalties imposed on Mr Muñoz and Mr Vernaza Arroyo by the Supreme Court, and to editorials published in Vistazo magazine attacking and criticizing the actions of the FENAJE and its leaders.
14. B. The Government’s reply
15. 933. In its communication dated 5 March 2008, the Government states with regard to the complaints in question that it requested a report from the President of the Supreme Court of Justice and of the National Judiciary Council, which was sent to the Ministry of Labour and Employment as official document No. 275-SP-PCSJ-2008 of 27 February 2008. The report states that it has been proven that the complaint made by Dr Girard David Vernaza Arroyo against the Government of Ecuador and the Supreme Court of Justice is unfounded. It also states that the judicial actions taken autonomously by the Supreme Court of Justice and the National Judiciary Council in the matters covered by the complaint were undertaken in compliance with constitutional standards, the Organic Law on the Judiciary and the Organic Law on the National Judiciary Council, observing the principles of due process and legitimate defence.
16. 934. With regard to Girard David Vernaza Arroyo, who states in his complaint that the Supreme Court of Justice of Ecuador, by a decision of 17 May 2006 published in Official Journal No. 282 on 1 June 2006, ruled that the judiciary should be reorganized and claims that this is at odds with the guarantees relating to career and tenure enshrined in the State Charter, i.e. at odds with judicial independence, the Government states that the following clarifications should be made: “The Constitutional Court received three complaints from: Girard David Vernaza Arroyo, in his capacity as people’s representative for 4,000 citizens and acting president of the FENAJE; Dr Jorge Enrique Machado Cevallos, president of the Ecuadorian Federation of Notaries and people’s representative for 1,000 citizens; and Dr Eliécer Flores Flores, people’s representative for 1,000 citizens and representing property registrars and other judicial officials, all the aforementioned complaints opposing the decision issued by the Supreme Court on 17 May 2006 and published in Official Journal No. 282 on 1 June 2006.”
17. 935. The abovementioned complaints were joined by the Constitutional Court and after the procedure provided for in the Constitutional Control Act and its regulations, in which the parties presented the relevant evidence and allegations, the Court issued Decision No. 0096-TC, 0012-2006-TC and 0014-2006-TC on 19 September 2006, essentially ruling that it was for the National Judiciary Council to hold as a matter of urgency the necessary competitions based on merit and testing with regard to the appointments of judicial officers whose terms of office had expired; that the competitions for notaries and registrars whose terms of office of four and six years were ending would be subject to the respective laws; and that article 3 of the contested decision would remain as a guarantee of continuity and stability for the judiciary until its officials were legally replaced. The aforementioned article states as follows:
18. Article 3. Provide that the incumbents of the high courts and tribunals of the Republic, judges, members of criminal courts, registrars and notaries shall continue to perform their duties until they are legally replaced, as laid down by the second clause of section 173 of the Organic Law on the Judiciary and other relevant legal provisions.
19. 936. The key points of the abovementioned decision are as follows:
20. (a) Article 204 of the Constitution states that the judicial career system is recognized and guaranteed and its regulations shall be determined by law. With the exception of the judges of the Supreme Court of Justice, magistrates, judges, officials and employees of the judiciary shall be appointed through competitions based on merit and testing, as applicable, in accordance with the provisions of the law. This provision is clear and the underlined sections are our own to emphasize the fact that the judicial career system, by constitutional mandate and the appointment of all judicial officials, through competitions based on merit and testing, is subject to the law. (b) Section 158 of the Organic Law on the Judiciary, a pre-constitutional standard published in Official Journal No. 486 of 25 July 1990, concurs with the constitutional principle inasmuch as it establishes the principle of the judicial career system. Sections 133 and 173 of the Organic Law on the Judiciary and section 11 of the Notary Act lay down periods of tenure for such officials. (c) The principle of the judicial career system guaranteed in article 204 of the Constitution and the recognition thereof, in addition to the concept of tenure, laid down in section 158 of the Organic Law on the Judiciary are not contradictory. Guarantees of tenure within a period specified by law can coexist with the recognition and appreciation of merit and judicial experience for the obligatory test-based competitions which the Constitution itself indicates as a condition of access to the judiciary for officials. Therefore, given that the Constitution reiterates that entry to and tenure in the career system are subject to the law, it is clear that legislative provisions on the terms of office of judicial officials who entered the system through competitions are in force and it is not possible to change the content of these provisions through interpretative decisions emanating from any public organization, except for the National Congress through law. As already stated, the regulations on terms of office do not contradict the general principle of tenure and the career system, with tenure for a specified period and a career system entailing the recognition of merit as a result of experience in the performance of duties with integrity, ability and efficiency. It could certainly be reasonably argued that the terms of office laid down in the Organic Law on the Judiciary and the Notary Act are short but this regulatory decision is the prerogative of the legislator, and as long as no new regulations exist, the terms of office laid down in the law are applicable and generally binding …
21. 937. The same decision also states:
22. The plaintiffs insist on the binding nature of the decision adopted by the Supreme Court of Justice on 24 July 2002, to which reference must be made, as follows and in accordance with the analysis undertaken, in order to avoid incorrect interpretations of its content and scope: (a) although, as has been analysed, in the constitutional order, the sphere of competence of the Supreme Court of Justice lacks powers of interpretation of general normative value – competence for which belongs to the National Congress through the adoption of an interpretative law – it is clear that the decision of 24 April 2002 has no other scope than to express a viewpoint which, as such, merely states an opinion which, as such, can be changed or reviewed for the purpose of providing guidance and ensuring the uniform application of the law but only in the exercise of judicial power and in conformity with the provisions of article 197 of the Constitution and section 15 of the Organic Law on the Judiciary, the latter of course being understood within the scope of that power. (b) The expression of viewpoints does not have general scope and so the assertion that the contested resolution of April 2002 constitutes a firm administrative act giving rise to rights cannot be accepted, since a viewpoint or appraisal, no matter how respectable, does not produce or generate direct and immediate effects and, therefore, nor does it or can it create subjective rights. Furthermore, in accordance with the analysis, the Supreme Court of Justice lacks competence to issue generally binding decisions, nor does it have competence to lay down provisions concerning the governance and administration of the judiciary. Hence, even though the decision issued on 24 April 2002 was not challenged and there are no grounds for declaring it unconstitutional, it is of fundamental value and importance to clarify its nature, as expressing a viewpoint which did not and could not give rise to direct effects in favour of the parties under administration, since such a viewpoint does not change the law or alter appointments of judges and other judicial officials that have been made.
23. 938. The Government indicates that the Constitutional Court decided to partially accept the appeals for the unconstitutionality of the decision of the Supreme Court of Justice dated 17 May 2006, published in Official Journal No. 282 of 1 June 2006, declaring the unconstitutionality of articles 4, 5 and 6 of the decision for the reasons stated in the operative part; and that the content of articles 1, 2 and 3 of the decision are consistent with the constitutional and legislative standards prevailing in Ecuador. This decision of the Constitutional Court was final, in accordance with section 14 of the Constitutional Control Act, which states that the decisions of the Constitutional Court cannot be appealed against, and with article 278 of the Political Constitution of Ecuador.
24. 939. The reference by the complainant organization to international human rights instruments has no impact on the present case since these naturally recognize the political right to hold public office and it is left to the internal laws of each state to establish the details, the only requirement being that conditions of equality are maintained. As regards the resolutions of the United Nations General Assembly concerning the judiciary, these recommend tenure for judges for the periods specified, independence, and appropriate levels of remuneration and pension. It is not stated that it should be impossible to remove judges from their posts. The complainant is seriously mistaken in asserting that there has been a violation of the rules of due process to the detriment of officials of the judiciary. Due process occurs when legal proceedings take place. This is clearly established by article 24(1) of the Political Constitution of Ecuador.
25. 940. The decision of the Supreme Court of Justice was issued in order to apply the law, which establishes specific terms of office for officials of the judiciary. The law does not state that a process must be followed in this regard and so the assertion that the rules of due process, including the right of defence, have been violated is groundless. The representatives and members of the FENAJE submitted three applications requesting that the decision of the Supreme Court of Justice of 17 May 2006 be declared unconstitutional, and these were joined together and decided in the form indicated by the Constitutional Court. However, with the aim of seeking to prevent the implementation of the Supreme Court decision concerning the reorganization and appointment of officers of the courts, judges, notaries and registrars, a number of judicial officials and other officers submitted various applications for amparo against the aforementioned decision in various geographical locations in Ecuador to numerous unspecified judges and courts. In this regard, the following points should be made.
26. 941. Article 95 of the Political Constitution of the Republic of Ecuador states that any person may file an application for amparo with the judicial body designated by law. This recourse enables urgent measures to be taken to stop, avoid or immediately rectify the consequences of an unlawful act or omission by a public authority which violates, or may violate, any right enshrined in the Constitution or in an international treaty or convention in force and which poses an immediate threat of serious harm to persons in their own right or as representatives of a group.
27. 942. Section 47 of the Constitutional Control Act states that competence for handling and resolving applications for amparo lies with the civil judges or courts of the territorial area in which an act violating protected constitutional rights is committed or may have an effect. The application may also be brought before a criminal judge or court on public holidays or outside the working hours of the courts or under exceptional circumstances, which must be cited by the applicant and confirmed by the judge or court in question, and therein shall lie competence for the case. Furthermore, article 2 of the decision of the Supreme Court of Justice of 27 June 2001, published in Official Journal No. 378 of 27 July 2001, states that the application for amparo is not admissible and shall be systematically rejected when it is submitted in respect of: (a) normative acts issued by a public authority, such as organic and ordinary laws, decree laws, decrees, ordinances, statutes, regulations and generally binding resolutions (erga omnes), since suspension of their effects for violation of the Constitution, in substance or in form, calls for an application for unconstitutionality, which has to be brought before the Constitutional Court.
28. 943. The Government indicates that the decision issued by the Supreme Court of Justice on 17 May 2006 is not an administrative act but, quite clearly, a resolution. The key feature of an administrative act is that it affects an individual person or specific group of persons and for this reason legal doctrine speaks of individual effects. On the other hand, a normative act (which may be contained in a law, decree, ordinance, regulation, resolution or other instrument) is issued to produce legal effects of a general character which are binding on everyone, which legal doctrine calls erga omnes. The Supreme Court of Justice issued a normative act through a binding decision of a general character (erga omnes), and this must be applied to the judiciary throughout the country.
29. 944. The applications for amparo brought before the judges of the country by judicial officers, despite the very clear provisions of a constitutional, legal and regulatory character, were allowed, in explicit violation of such legislation, because those judges as judicial officers were members of the FENAJE. Hence they acted without observing the requirement of impartiality and therefore appeared as both judges and interested parties. Most of these applications for amparo were rejected by the Constitutional Court.
30. 945. The Government recalls that the FENAJE stated that the fourth civil judge of Manabí, by a decision relating to constitutional amparo issued on 23 October 2006, suspended the effects of the announcement by the Judiciary Council for a competition for posts based on merit and testing; an administrative investigation was launched by the Judiciary Council and subsequently the judge was dismissed, and the judge who handled the amparo application in respect of the illegal appointments of the two new officers of the Judiciary Council faces an investigation into his judicial actions. The Government also recalls that the complainant claims that these circumstances were the reason for the judicial officers and employees occupying the National Judiciary Council building on 13 February 2007 and that the Supreme Court of Justice, in its session of 14 February 2007, despite having no competence and violating the most basic principles of due process, proceeded to dismiss FENAJE officials Luis Hernán Muñoz Pasquel, Girard David Vernaza Arroyo, Josefa Clementina Mendoza Zambrano, Jaime Fabián Pérez Sánchez, Alba Rosa Quinteros Campaña and Milton Pazmiño Soria for blatant misconduct and violation of the constitutional prohibition on immobilizing a public service by occupying the National Judiciary Council building.
31. 946. With regard to lawyer Luis Hernán Muñoz Pasquel, first assistant of the First Labour Court of Pichincha with administrative duties in the Planning Department of the National Judiciary Council, the Government declares that at various times and on various grounds the following administrative proceedings were initiated:
32. (I) No. 131-06-MCR: administrative proceedings were initiated because lawyer Luis Hernán Muñoz Pasquel gave interviews on Radio Cadena Democracia, the Ecuavisa TV programme Contacto Directo, Gamavisión TV news and the El Noticiero TV programme. After the conclusion of the investigation on 2 October 2006, the Human Resources Committee of the National Judiciary Council decided in the administrative proceedings that lawyer Luis Hernán Muñoz Pasquel should be suspended from his duties as first judicial assistant for 30 days without pay. In response to the review request submitted by Dr Jaime Velasco Dávila, President of the Supreme Court of Justice in the name of that organization, the Human Resources Committee of the National Judiciary Council decided on 7 November 2006 to review the decision issued on 2 October 2006, imposing an amended penalty of dismissal because the officer in question had breached sections 13(c) and (h) of the Judiciary Regulations on Discipline, Complaints and Penalties. The Committee ruled that its resolution should take effect immediately, in accordance with the provisions of section 15 of the Regulations. Dismissed lawyer Luis Hernán Muñoz Pasquel lodged an appeal and the National Judiciary Council decided on 1 November 2007 to uphold the penalty;
33. (II) No. 198-2006-SG: administrative proceedings were initiated on the grounds that the judicial official in question had been absent from the post in respect of which he receives a salary from the judiciary. After undertaking the relevant investigation, the Human Resources Committee of the National Judiciary Council decided on 28 February 2007 to dismiss lawyer Luis Hernán Muñoz Pasquel from the post of judicial assistant of the First Labour Court of Pichincha. In its resolution, the Committee states that analysis of the circumstances of the case showed that the judicial officer was not present at his post to earn his pay but had made trips to various foreign countries without permission. During the investigatory proceedings, it was not even possible to locate exactly where the judicial assistant was working. The penalty was imposed in accordance with section 17(f) of the Organic Law on the National Judiciary Council and sections 7, 8 and 10(d), in conjunction with sections 13(c), (d) and (p), of the Judiciary Regulations on Discipline, Complaints and Penalties. Lawyer Luis Hernán Muñoz Pasquel lodged an appeal against the aforementioned decision, and this is currently being examined by the National Judiciary Council; and
34. (III) No. 134-2006: administrative proceedings were initiated against lawyer Luis Hernán Muñoz Pasquel, on the basis of the complaint submitted by Supreme Court of Justice magistrate Dr Mauro Terán Cevallos to the Complaints Committee of the National Judiciary Council, for standing as first principal candidate for provincial deputy of Pichincha for the “Causa Justa” movement and for unlawfully engaging in a political campaign while serving as a judicial officer. On 30 August 2007, the Human Resources Committee decided to dismiss lawyer Luis Hernán Muñoz Pasquel, first judicial assistant of the Training Unit, and, in relation to the dismissal, decided to send a copy of the decision to the National Personnel Department and the District Delegation of Pichincha so that there would be a record of it in his personal file. The penalty imposed is based on article 97(13), (17) and (18) of the Political Constitution of the Republic; section 26(d) and (f) of LOSCCA; section 7 of the Judiciary Regulations on Discipline, Complaints and Penalties; and section 17(f) of the Organic Law on the National Judiciary Council, in conjunction with sections 8, 10(d) and 13(a), (c) and (p) of the aforementioned Regulations.
35. 947. As regards the allegation that the Supreme Court of Justice unlawfully dismissed from the judiciary Luis Hernán Muñoz Pasquel, Girard David Vernaza Arroyo, Josefa Clementina Mendoza Zambrano, Jaime Fabián Pérez Sánchez, Alba Rosa Quinteros Campaña and Milton Pazmiño Soria, the Government states that it should point out that the Supreme Court decided on 14 February 2007 to dismiss the aforementioned persons from their duties in the judiciary on the basis of the second clause of article 35(10) of the Political Constitution of the Republic, which prohibits any immobilization of public services, especially in the areas of health, education, justice and social security; article 13(1), which lays down that the tasks and duties of the Supreme Court include the appointment or dismissal of officers to/from the high courts, and also the dismissal of judges, officials and employees from the judiciary for blatant misconduct in the performance of their duties; and article 17, which determines that the primary duty of the Supreme Court is to supervise the administration of justice in the Republic.
36. 948. The Government affirms that the aforementioned judicial officers were punished for the violent actions of 13 February 2007, which were reported as follows in the 14 February 2007 edition of the El Comercio newspaper of Quito, the capital of Ecuador:
37. The differences between the Council of the Judiciary and the leadership of the federation representing the judicial officers have taken on a violent hue. At 10.30 a.m. yesterday, a group of demonstrators led by FENAJE president Girard David Vernaza Arroyo and ex-union leader Luis Hernán Muñoz occupied the Council building. The protesters abruptly entered the eighth floor, where the Human Resources Committee is located. At that moment, officers Ulpiano Salazar, Benjamín Cevallos, Víctor Castillo and Edgar Zárate were examining two cases against Vernaza Arroyo and Muñoz. Zárate left the meeting to attend to a personal matter. Several minutes later, the crowd shut the other three officers in the meeting room, “broke down the door of my office, insulted us and obliged us to get out,” said Salazar, visibly shaken. The councillors and staff of the Council were removed from the building. At that time the police guard, composed of three uniformed officers, was only guarding the main entrance. “The demonstrators entered the offices with chains in their hands. They said they weren’t going to use force but the whole action was violent. Lawyer Luis Hernán Muñoz was on the first floor making us all get out,” said a female official, who declined to give her name for security reasons. The police arrived when the demonstrators took control of the upper floors of the building. The strikers identified themselves as relatives of judicial officers “who have been harmed by the decisions of the judiciary”. Vernaza Arroyo, for his part, justified the use of force. “It’s the only way left. The Supreme Court and the Judiciary have been harassing the FENAJE leaders. The only solution is to get rid of all the officers.” The problem between the Council and the judicial officers started in May last year. At that time, the Supreme Court ordered the reorganization of the judiciary, shedding some 4,000 employees. After a series of applications for amparo filed by the judicial officers in the Constitutional Court, the latter decided that the process should continue. It also decided that the judiciary should hold competitions to elect new judicial officials. According to officer Zárate, this process is still in progress. “The convocations were issued for the officers of the courts of five districts: Pichincha, Guayas, Manabí, Azuay and Loja.” The personal files of the applicants were in the office of councillor Salazar which was occupied by the demonstrators. “We are ordinary people, not criminals,” said Muñoz, when consulted on this documentation. In the afternoon, the Council officers met the judges of the Supreme Court. The meeting began at 5 p.m. and two hours later the judges decided to impose administrative penalties on the demonstrators. The possibility of taking legal action is also being considered. According to judge Rubén Bravo, “it is a criminal offence to immobilize public services”. Furthermore, the Court requested the Public Prosecutor’s Office of Pichincha to appoint a prosecutor to take statements from the councillors who were assaulted during the occupation of the Council building. On the same day, 13 February 2007, FENAJE president Girard David Vernaza Arroyo and lawyer Milton Pazmiño Soria, president of the Santo Domingo Judiciary Association, ordered a national work stoppage of the judiciary with immediate effect, as a means of supporting the judicial colleagues who occupied the offices of the National Judiciary Council in Quito.
38. 949. The Government states that the dismissed judicial officers referred to above took legal action as follows:
39. – Girard David Vernaza Arroyo, lawyer Luis Hernán Muñoz Pasquel, lawyer Milton Pazmiño Soria and Josefa Clementina Mendoza Zambrano filed applications for amparo against the decision issued by the Supreme Court of Justice. On 11 October 2007, after the corresponding legal procedure, the chamber decided not to accept the action. Consequently, the parties concerned lodged appeals with the Constitutional Court. The appeal having being allowed, the amparo application is currently being examined by the Third Chamber of the Constitutional Court and no ruling has yet been issued;
40. – Jaime Fabián Pérez Sánchez filed an application for amparo against the decision of the Supreme Court of Justice with the Second Chamber of the Quito District Administrative Disputes Court No. 1. After the corresponding procedure, the Court decided not to allow the application for amparo. Since the party concerned lodged an appeal, the case is currently being examined by the Third Chamber of the Constitutional Court and no ruling has yet been issued;
41. – Alba Rosa Quinteros Campaña filed an application for amparo against the decision of the Supreme Court of Justice with the Second Chamber of the Quito District Administrative Disputes Court No. 1. After the corresponding legal procedure, the Chamber decided to allow the application for amparo. Consequently, the Supreme Court judges who were impugned lodged an appeal. The case is currently being examined by the First Chamber of the Constitutional Court and no ruling has yet been issued.
42. 950. The Government points out that it can be seen from the above that the applications for amparo filed by Girard David Vernaza Arroyo, lawyer Luis Hernán Muñoz Pasquel, Josefa Clementina Mendoza Zambrano, lawyer Milton Pazmiño Soria, Jaime Fabián Pérez Sánchez and Alba Rosa Quinteros Campaña have not yet been concluded. Therefore the complainants’ assertion regarding their dismissal – that they have not had the opportunity to defend themselves and that their constitutional guarantees and rights have been violated – is unfounded.
43. 951. As regards the complainants’ allegation that, in order to silence the trade union, criminal court proceedings were launched in which, on 25 October 2007, the Third Criminal Chamber of the High Court of Quito issued a detention order against FENAJE official Girard David Vernaza Arroyo and former FENAJE president Luis Hernán Muñoz Pasquel, with the aim of restricting freedom of association, the Government indicates that the president of the Human Resources Committee of the National Judiciary Council filed a complaint with the Pichincha District Prosecutor’s Office to the effect that, at 10.15 a.m. on 13 February 2007, numerous judicial officers had occupied the National Judiciary Council building. On 16 February 2007, the Pichincha District Prosecutor’s Office launched preliminary investigation No. 488-07-FNC into the circumstances of the case. After this had been completed, the Pichincha District Prosecutor decided to commence the next stage on 10 October 2007 with the opening of Case No. 008-2007 against the defendants, Luis Hernán Muñoz Pasquel and Girard David Vernaza Arroyo, ordering that the whole case file and all the evidence, including potentially exonerating evidence, be made available to the accused and their defence lawyers, requesting the criminal court judge to order preventive detention for the accused, as well as the appropriate precautionary measures, considering that the prerequisites laid down in section 167 of the Code of Criminal Procedure had been met: namely, that there was sufficient evidence of the existence of the offence; clear and precise evidence that the accused were the perpetrators of, or accomplices to, the offence in question; and that the latter was covered and penalized by section 155 of the Penal Code, which states that anyone who, in order to disrupt public order, invades public or private buildings, installations or land, or who, in committing such acts for the said purposes, misappropriates property shall be imprisoned for three to six years and incur a fine of US$44–175.
44. 952. The Government adds that, on 25 October 2007, the Third Special Criminal Chamber of the High Court of Justice of Quito, considering that the request of the Pichincha District Prosecutor to issue an order for preventive detention against lawyer Luis Hernán Muñoz Pasquel and Girard David Vernaza Arroyo meets the requirements of sections 167 and 168 of the Code of Criminal Procedure, ordered the preventive detention of the accused and that this matter be implemented by the judicial police of Pichincha and Esmeraldas. This measure was appealed against by the accused, and to date the outcome of the appeal is still pending.
45. 953. The Government states that article 35 of the Political Constitution of Ecuador provides as follows:
46. Work is a social right and duty and shall be protected by the State, which shall ensure that workers enjoy respect for their dignity, a decent existence and fair remuneration which meets their needs and those of their families. It shall be governed by the following fundamental standards … 10. The right of workers to strike and that of employers to halt work is recognized and guaranteed, in accordance with the law. Any immobilization of public services shall be prohibited, especially in the areas of health, education, justice and social security; electricity, drinking water and sewage disposal; processing, transport and distribution of fuel; public transport and telecommunications. Appropriate penalties shall be laid down by law.
47. Article 219 of the Political Constitution of Ecuador provides as follows:
48. The Public Prosecutor’s Office shall make procedural arrangements for the hearing of cases, and shall direct and conduct investigations before and during the criminal trial. If grounds are established, it shall accuse the presumed perpetrators of the offence before the competent judges and courts and shall conduct the prosecution to establish a verdict.
49. Article 199 of the Constitution provides as follows:
50. The organs of the judiciary shall be independent in the exercise of their duties and tasks. No State entity shall be able to interfere in the affairs of other entities. Magistrates and judges shall be independent in the exercise of their jurisdictional powers, even vis-à-vis the other organs of the judiciary. They shall be subject solely to the Constitution and to the law.
51. Finally, section 2 of the Code of Civil Procedure provides as follows:
52. The power to administer justice is independent. It may be exercised solely by the persons designated in accordance with the law.
53. 954. The Government declares that from the above and from the cited provisions it can be seen that the criminal proceedings under way against the judicial officers who occupied the National Judiciary Council building were launched and substantiated by the competent authorities of the Ecuadorian State. In this case, these are the Public Prosecutor’s Office, which enjoys autonomy and independence in the exercise of its functions, and one of the criminal chambers of the High Court of Justice, to which legal jurisdiction has been assigned. Hence the complainant’s assertion that criminal proceedings have been launched to silence the trade union leaders’ defence of their organization and to restrict freedom of association is unfounded.
54. 955. The Government points out the relevance of establishing whether, in terms of Ecuadorian legislation, FENAJE president Girard David Vernaza Arroyo and the entity he represents (FENAJE) come within the scope of the Labour Code or Organic Law on the Judiciary in their legal relationship with the Ecuadorian judiciary. To this end, recourse must be had to the Political Constitution of Ecuador, article 204 of which states:
55. Article 204. The judicial career system shall be recognized and guaranteed. Its regulations shall be determined by law.
56. With the exception of the judges of the Supreme Court of Justice, judges, magistrates, officials and employees of the judiciary shall be appointed through competitions based on testing and merit, as applicable, in accordance with the provisions of the law.
57. In concordance with the above, the Organic Law on the Judiciary of Ecuador states:
58. Section 1. Administration of justice. Justice shall be administered by the courts and tribunals established by the Constitution and the laws.
59. Section 158, first clause. The judicial career system and, consequently, the right of the members of the judiciary to tenure and advancement are hereby established, provided that they perform their duties with integrity, ability and efficiency.
60. The officers of the Supreme Court shall be protected by the judicial career system in so far as this is compatible with the provisions of the Political Constitution regarding judgeship.
61. Advancement shall be governed by the regulations.
62. Section 159. [National Committee on the Judicial Career System.] Under the auspices of the Supreme Court, the National Committee on the Judicial Career System is created, whose functions and composition shall derive from the respective regulations.
63. There shall be a judicial career scale, in accordance with the provisions of the third clause of section 176 of the present act. The provision of posts shall be effected through competitions based on testing and merit, in accordance with the relevant laws and the regulations.
64. In line with the above, section 1 of the Organic Law on the National Judiciary Council states:
65. Section 1. The National Judiciary Council is the administrative and disciplinary organ of the judiciary. It has legal personality in public law and administrative and financial autonomy. Its seat shall be in the capital of the Republic and it shall exercise its powers throughout the national territory, in accordance with the Constitution, the law and the respective regulations.
66. Section 11(c). Examine and resolve administrative appeals for dismissal, incapacity or incompetence; for disciplinary penalties for the dismissal or removal of officers of high courts and district tribunals, officers of criminal courts, judges, registrars, notaries and all other officers of the judiciary ...
67. 956. The Government asserts that the cited legal provisions demonstrate fully that the relationship of the judicial officials and other officers of Ecuador with the judiciary is governed by the Organic Law on the Judiciary and the Organic Law on the National Judiciary Council, in accordance with the principle of the autonomy and independence of the judicial authority from the other authorities of the State.
68. 957. According to the Government, it is therefore contradictory that the complainant cites as the legal basis of its action ILO Conventions Nos 87 and 98, which refer to labour rights provided for in the Ecuadorian labour code, the scope of which does not cover judicial officers. Under Ecuadorian legislation, judicial officers are not classified as workers. The FENAJE is not a professional association or trade union in the form laid down by the Labour Code of Ecuador.
69. 958. The Regional Labour Directorate of the Ministry of Labour and Employment of Ecuador certifies in Memorandum No. 235-UGL, which forms part of official communication No. 182-DRTQ-2007, issued on 22 February 2007 in Quito, that the FENAJE is not registered at that office. Consequently, since the organization has not been registered, there is no registration of any executive committee. In official communication
70. No. 027-IML2008, issued in Quito on 22 February 2008, the Regional Labour Directorate certifies that, after examination of the archives of the Regional Labour Directorate of Quito, no collective labour complaint or list of demands has been submitted by the FENAJE against the judiciary or the National Judiciary Council.
71. 959. In conclusion, the Government states that its reply shows that the complaint formulated by the FENAJE against the Government of Ecuador and the Supreme Court of Justice is groundless. The autonomous judicial actions of the Supreme Court and the National Judiciary Council in the matters raised in the complaint were undertaken in conformity with constitutional standards, the Organic Law on the Judiciary and the Organic Law on the National Judiciary Council, observing the principles of due process and legitimate defence. Furthermore, it is established that the legal grounds cited by the complainant as the basis of the present complaint are inapplicable and contradictory because, given that the judicial officers it represents are not officially classified as workers and the FENAJE does not have the status of a professional association or trade union, there cannot be any undermining of the rights cited in the complaint in terms of supposed violations of Ecuadorian or international labour legislation by the Supreme Court and the National Judiciary Council of Ecuador, and in relation to freedom of association and protection of the right to organize and collective bargaining, provided for in ILO Conventions Nos 87 and 98. In its communication dated 26 November 2008, in response to the request that it specify whether the FENAJE is a trade union and, if not, that it indicate the reasons therefor and whether officers of the judiciary enjoy the right to trade union organization as well as the other rights enshrined in Conventions Nos 87 and 98, the Government states that it shares the arguments set forth in the legal report of the Supreme Court of Justice relating to the legal situation of FENAJE.

C. The Committee’s conclusions

1. 960. The Committee observes that the FENAJE asserts that owing to the fact that the Supreme Court of Justice issued a resolution dated 17 May 2006 ordering the reorganization of the judiciary which, in the union’s opinion, conflicts with the guarantees relating to the career system and tenure enshrined in the Constitution, the sectors of workers affected initiated various judicial actions. The complainant organization alleges that the response of the Supreme Court and the National Judiciary Council was to harass and penalize the union members and officials. Specifically, the complainant indicates that, without there being any legal competence for doing so and in violation of the principles of due process, the following union members and officials were dismissed: Mr Luis Hernán Muñoz Pasquel, Mr José Barcia, Mr Girard David Vernaza Arroyo, Ms Josefa Clementina Mendoza Zambrano, Mr Jaime Fabián Pérez Sánchez, Ms Alba Rosa Quinteros Campaña and Mr Milton Pazmiño Soria, citing alleged blatant and serious misconduct in the performance of their duties. The complainant also alleges that, in order to silence the union, criminal proceedings were launched against the FENAJE leader Girard David Vernaza Arroyo and the former FENAJE president Luis Hernán Muñoz Pasquel in the Third Criminal Chamber of the High Court of Quito on 25 October 2007.
2. 961. Firstly, the Committee wishes to refer to the Government’s statement to the effect that the FENAJE is not a trade union and that judicial officers are not classified as workers. In this respect, the Committee recalls that Article 2 of Convention No. 87 is designed to give expression to the principle of non-discrimination in trade union matters, and that the words “without distinction whatsoever” used in this Article mean that freedom of association should be guaranteed without discrimination of any kind based on occupation, sex, colour, race, beliefs, nationality, political opinion, etc., not only to workers in the private sector of the economy, but also to civil servants and public service employees in general [see Digest of decisions and principles of the Freedom of Association Committee, fifth edition, 2006, para. 209]. Consequently, the Committee requests the Government to ensure that judicial officers enjoy the right to establish and join organizations of their own choosing, and to take the measures necessary to ensure that the FENAJE is recognized as a trade union if it meets the formal requirements, which should conform to the principles of freedom of association.
3. 962. As regards the decision of the Supreme Court of Justice ordering the reorganization of the judiciary, the Committee, observing that the complainant has not alleged that this violates the principles of freedom of association, will not make any pronouncement on its content. However, the Committee recalls that on numerous occasions it has emphasized the importance it attaches to the promotion of dialogue and consultations on matters of mutual interest between the public authorities and the most representative occupational organizations of the sector involved [see Digest, fifth edition, 2006, para. 1067]. Under these circumstances, in order to ensure harmonious relations in the sector, the Committee considers that it would be appropriate in the future, when it is planned to adopt legislative or other measures which affect the conditions of employment of officials of the judiciary, to hold prior consultations with the workers’ organizations concerned.
4. 963. With regard to the alleged dismissals of the FENAJE members and leaders, the Committee notes the Government’s general statement that the Supreme Court of Justice issued a decision on 14 February 2007 dismissing Luis Hernán Muñoz Pasquel, Girard David Vernaza Arroyo, Josefa Clementina Mendoza Zambrano, Jaime Fabián Pérez Sánchez, Alba Rosa Quinteros Campaña and Milton Pazmiño Soria from their posts in the judiciary, on the following basis: (1) the second clause of article 35(10) of the Political Constitution, which prohibits any immobilization of public services, especially in the areas of health, education, justice and social security; (2) section 13(1) of the Organic Law on the Judiciary, which establishes as one of the powers and duties of the Supreme Court the appointment or removal of officers of the high courts, as well as the dismissal of judges, officials and employees of the judiciary for blatant misconduct in the performance of their duties; (3) section 17 of the same Law, which determines that the Supreme Court has the essential duty of supervising the administration of justice in Ecuador; and (4) the abovementioned judicial officers were punished for violent acts committed on 13 February 2007 (occupation of the National Judiciary Council building). While noting the Government’s reply, and the context of the allegations, the Committee calls attention to the importance of respecting the provisions of Convention No. 87 as regards the right to organize, as well as regarding the importance of the principle that “the Government has the duty to defend a social climate where respect for the law reigns as the only way of guaranteeing respect for and protection of individuals” [Digest, op. cit., para. 34].
5. 964. Furthermore, the Committee notes that the Government supplies more detailed information to the effect that: (1) Luis Hernán Muñoz Pasquel, Girard David Vernaza Arroyo, Milton Pazmiño Soria and Josefa Clementina Mendoza Zambrano filed an application for amparo in relation to their dismissal on 1 October 2007; this application was not accepted and appeals were lodged against this decision in the Constitutional Court, which has not issued any ruling to date; (2) Jaime Fabián Pérez Sánchez filed an application for amparo with the Second Chamber of the Quito District Administrative Disputes Court No. 1; the Court did not allow the appeal and the applicant lodged an appeal for amparo with the Constitutional Court, which has not issued any ruling to date; and (3) Alba Rosa Quinteros Campaña filed an application for amparo with the Quito District Administrative Disputes Court No. 1, which decided to grant amparo, but the members of the Supreme Court lodged an appeal, which is being examined by the First Chamber of the Constitutional Court, which has not issued any ruling to date. In these conditions, the Committee requests the Government to keep it informed of the outcome of the judicial proceedings relating to the dismissal of the FENAJE members Luis Hernán Muñoz Pasquel, Girard David Vernaza Arroyo, Milton Pazmiño Soria, Josefa Clementina Mendoza Zambrano, Jaime Fabián Pérez Sánchez and Alba Rosa Quinteros Campaña.
6. 965. As regards the allegation that, in order to silence the FENAJE, criminal court proceedings were launched against union official Girard David Vernaza Arroyo and former union president Luis Hernán Muñoz Pasquel, the Committee notes the Government’s statement to the effect that: (1) the president of the Human Resources Committee of the National Judiciary Council filed a complaint with the Pichincha District Prosecutor’s Office on the basis that a large number of judicial officers occupied the National Judiciary Council building on 13 February 2007; (2) on 6 February the Pichincha District Prosecutor’s Office launched a preliminary investigation of the alleged acts; (3) after the end of the investigation period, the Pichincha District Prosecutor decided to initiate case
7. No. 008-2007 against the accused, ordering the whole case file and all the evidence, including potentially exonerating evidence, to be made available to them and their lawyers; (4) the District Prosecutor requested the criminal court judge to issue an order for preventive detention against the accused, and also to prescribe the corresponding precautionary measures, considering that the conditions laid down in section 167 of the Code of Criminal Procedure had been met (namely, sufficient evidence of the existence of the offence and clear and precise evidence that the accused are the perpetrators of, or accomplices to, the offence in question, which is covered and penalized by section 55 of the Penal Code relating to the disruption of public order, the occupation of public or private buildings, installations or land, and the misappropriation of property); (5) the Third Special Criminal Chamber of the High Court of Justice of Quito ordered the preventive detention of the accused and the subsequent implementation of the order by the judicial police of Pichincha and Esmeraldas, the accused lodged an appeal and the outcome thereof is still pending; and (6) from the above and from the cited provisions it can be seen that the criminal proceedings under way against the judicial officers who occupied the National Judiciary Council building were initiated and substantiated by the competent State authorities and the assertion that criminal court proceedings have been launched to silence the trade union leaders’ defence of their organization and to restrict freedom of association is unfounded.
8. 966. In these conditions, the Committee requests the Government to keep it informed of the outcome of the appeal lodged by the FENAJE official Girard David Vernaza Arroyo and former union president Luis Hernán Muñoz Pasquel in the context of the criminal proceedings under way against them, and also to inform it whether they have been placed in custody. The Committee trusts that the judicial authority will issue a ruling as soon as possible.